Liveblogging from the Loyola Law Journal Conference on Patents, Innovation & Freedom to Use Ideas

Today I'll be liveblogging from the Loyola Law Journal Conference on Patents, Innovation & Freedom to Use Ideas. I'll be posting the full text of my entries below the break for those who are interested. Note that I don't necessarily agree with the views of all the speakers (some of whom are close to diametrically opposite). Also, keep in mind that this is very rough blogging. Don't expect elegant writing.

Begins with a warning about Facebook; please don't post anything about the talk on Facebook [apologies if this gets distrbuted there; I've turned off my own Facebook sharing for this post]. If copies of the recording of his talk are distributed, please only do so in free access formats. Please put on any recordings the Creative Commons No Derivatives License.

Not going to focus on software patents specifically. Instead going to focus on the disconnect between academic studies of the patent system and real life. Views the state's view of the patent system as discouraging trade secrecy. Patents, then, are viewed as a way to get people to give up trade secrets. There is a disconnect, however, because the state also encourages trade secrecy. This is akin to creating a problem (trade secrecy law) and then creating a solution to address that problem.

Second problem with this theory of patents: patents aren't very good at disclosing information. Patents are hard to read; engineers can't read patents. Patents are doing no good in getting rid of trade secrecy.

Second theory of patent law: that it encourages innovation. Problem here is that licensing is not frictionless and academics assume that it is.

Turning to software specifically. Even if patents have managed to increase the number of ideas that are developed, that wouldn't do any good. Why? Because the hard part of software is implementing those ideas. The world is always making lots of ideas. But the big effect of patents in software is to impede the use of those ideas.

Likens this to writing a novel. Just coming up with lots of ideas for a novel isn't the same as writing a novel. Imagine if one could get patents on the ideas for a novel; it would turn the field of literature into gridlock. On the other hand, we treat writing software differently even though it's really the same thing. Software brings together many ideas in its implementation. If even a small number of those ideas are patented, writing code becomes almost impossible.

People that study patents tend to assume that the patent office tends to do a reasonable job despite centuries of evidence that the patent office does a bad job. References a Supreme Court decision from the early 1950's listing many patents that the Supreme Court had invalidated and rebuking the patent office for granting all those patents. [Probably referencing Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 340 U.S. 147 (1950).]

Turning to the field of medicine. Here, the issue is one of price. And this issue is a matter of life and death for many people. References a threat that Novartis made to block the sale of future drugs in India. This was due to the WTO and TRIPS. In his view, everyone who was involved in the WTO should go on trial for mass murder.

Turning to the field of agriculture. When genes are patented, that attacks the fundamental right of farmers to save their seeds. In the U.S., it's almost impossible to avoid the patented genes for certain kinds of crops. You can't get seed that's free of Monsanto's GMOs. References the Monsanto v. Bowman case. With crops that spread through the wind, you may be unable to stop those genes from coming into your fields. Is Monsanto going to be liable for the spread of its genes into fields where they are unwanted. We must restore farmers' rights to save their seeds.

These three examples are not economic issues and don't just have economic effects. Here, the effects go beyond the field of economics.

People who study patents are influenced in various ways. Academics who study the patent field often want to get funding from large companies who want patents; they know what is expected of them: we will give you funding provided that you say patents are a good thing. This kind of influence can happen whenever some kinds of institutions that tend to have a specific preference have a lot of influence generally on people on a certain field. And it's clear that businesses have that influence on academia today. That applies across the board; many instances of suppression of researchers in various field who go against the interests of industry. In the case of patents, it's not as severe as in say health, but industry still has an influence and that influence affects where the responsible mainstream is.

Questions: Jessica Silbey: What do you think is the proper role of profit seeking in the patent system?

Ans.: Boldrin and Levine have convinced him that we shouldn't have a patent system. But even if he were convinced that we should have a patent system, he can't relate to the question. He's not anti-business; he's not anti-patent. If we were going to have a patent system, he doesn't have an opinion about how damages should be computed. Those are small details to him. In the three fields he mentioned, we must get rid of patents. Generally, though, he thinks we should get rid of patents.

Innovation and progress are not necessarily the same thing. Innovation can be bad; it can be regress.

Mathew Sag: Would your objection to software patents be decreased if the scope of the patents were decreased; i.e.: not just a patent on an idea, but rather an idea that is implemented in a specific context.

Ans: Clearly, anything that reduced the breadth of patents would reduce the total amount of danger. But, anyone who got a patent would be getting it because it was of value. And that would mean that others wouldn't be able to use that thing. So if it were sufficient to deal with the problem of capturing valuable developments, it would probably result in nobody filing for parents.

Question: You referenced your support for India's decision to focus on making cheap drugs rather than new drugs. What if every country followed that practice?

And: Why would you assume that every country would do that? It was in India's benefit to do that; wouldn't be the same for all countries. Also, you have to consider how medical research actually works. Drug company research doesn't save people's lives; government-funded research saves people's lives. The drug companies spend money on influencing the medical system through gifts, phony medical journals, suppression of research results they don't like; ghost-written articles. If we knocked out 9/10ths of drug companies' income, we'd be safer. And if we had direct government negotiation over the pricing of drugs, that would make us safer.

Question: How do you respond to the idea that if we don't have patents the new drugs won't get approved?

And: The current system under which drugs are tested is corrupt and should be dumped. If we were to keep that system, the argument that patents are necessary to fund that testing system might have weight. But because that system is corrupt and dangerous and doesn't test drugs properly, we need to replace it always. And once it's dumped that argument won't matter.

Matt Sag: When you wrote the GNU General Public License, it didn't make any provision for patents.

And: The original version was a copyright license. In version 2, he introduced the idea of the liberty or death clause. If a patent license limited the free distribution of the program, then the program could not be distributed. Version 3 has more complicated provisions that requires the granting of a patent license. The GNU GPL is primarily a copyright license.

The effects of copyright law and patents on software are very different. For this reason, the term "intellectual property" should never be used. It's very hard to use the term "intellectual property" in a true statement. Patent and copyright law have nothing in common other than one sentence in the constitution. It gets even worse when you lump trade secrets and trademark law into the umbrella of intellectual property.

Question: If you got rid of patents, presumably the trade secret system would increase. What would be the effect?

Ans: Companies are doing this already. In the long term, these two areas of the law develop under political pressure. Since patents aren't very useful for reducing trade secrecy, it probably won't make much difference on trade secrets. Trade secrecy is likely to grow or shrink independent of patent law. Consider the Ag/Gag laws that make it a crime to get an undercover job to expose bad practices in the agricultural industry.

Question: People who have money tend to game the system, I agree. But is this throwing out the baby with the bathwater. It appears to me that you're saying that there's no way to correct things. But money and power has always driven the law.

And: The plutocracy is so embedded in this country, maybe we can't change anything. He's not saying that we can politically fix what's wrong with the system of drug development and testing. Only saying that here's a way we could correct a system of drug examination. Whether it's possible to implement that solution is a different question; he can only hope that by talking about the problem and the solution that perhaps we'll get there. Same with the patent system; whether we could actually eliminate the patent system he doesn't know the answer. Still we can talk about what would be a good thing to do.

Jessica Silbey: Were you not convinced that the patent system should be abolished as a whole before you read the Boldrin and Levin article?

And: I was not; in the past, I haven't thought that the patent system should be eliminated outside the three special fields that I mentioned, but Boldrin and Levine's arguments convinced me.

Cynthia Ho: Is it realistic, even if we could get politicians on board, to rely solely on the government for all drug discovery and testing?

And: From what's I've read, for the drugs that make an important difference we're already relying primarily on government-funded drugs. The pharma companies don't make a significant impact in that area. The testing side is different; the government could certainly do this.

Cynthia Ho followup: Agree that there are problems with the drug development system. But in the past, the government hasn't been good at bringing new drug developments to market. That was the basis for the Baye Dole act.

Ans: The government has a lot of money, and it should be spending more than it is. Anyone who thinks that the government doesn't have money is buying into a right wing distortion in the first place. So he's not convinced that the government couldn't do it. Our government was doing a lot of things 10 or 20 years ago that it's not doing today.

Mathew Sag: Is it your position that we don't need the extra incentive that software patents could offer in some situations, or even if we found that software could provide an incentive, then it's just wrong from a moral standpoint?

Ans: It's wrong both economically and morally. From an economic standpoint, the first mover advantage is so important that it dwarfs anything else. He doesn't believe that any one needs a software patent to do anything. Rather, people just want patents to get patents. Arguments to the contrary are just rationalization of the system as it exists. He doesn't think that patents provide any incentives to develop software.

Stallman operates on a premise that software patents patent ideas. My gut reaction is that one cannot patent an idea, but then I look at what the PTO issues and see that they do issue a large number of patents that seem to patent ideas.

Whose fault is that? While the PTO might share some of the blame, the primary fault is the CCPA and the Federal Circuit, and the primary blame can be laid at the feet of a single judge.

Obviously not. Why would you bother to develop software when you could instead simply write down what it does, file for a patent on it, and collect the fruits of other people’s labor? Such would be an irrational decision at best. And anyone stu pid enough to do such a thing should have his patent taken away for his stu pidity.

I have to rather disagree since I know personally of a firm that disclosed its trade secrets at the urging of my uncle at my urging. I also rather disagree with that assertion based upon the fact that every single day I work on inventions that do, in fact, disclose at least some trade secrets in a manner that is at least barely acceptable. And not only that, but some few of them at least are “valuable” in terms of their knowledge disclosed, not in terms of simply being able to block others from implementing them.

For the record, there are generic colas out there that are indistinguishable from Coke. It’s been the case for many, many years that Coke is not protecting a “secret formula” but protecting a myth that it’s formula is not reproducible. In other words, it’s purely an advertising/branding gimmick at this point.

If an engineer (i.e. a person having ordinary skill in the art) can’t read and understand a patent (i.e. derive an enabling disclosure from it), then it is invalid. Sounds like a self-correcting problem to me.

To the extent this “self-correction” requires an appeal to the Federal Circuit, that’s not a feature. It’s a bug.

very deep areas in which he has no training and very little experience

Seems like he’s got great training and experience in the computer software area, at least. I don’t see anything inaccurate here: “Even if patents have managed to increase the number of ideas that are developed, that wouldn’t do any good. Why? Because the hard part of software is implementing those ideas. The world is always making lots of ideas. But the big effect of patents in software is to impede the use of those ideas. Likens this to writing a novel. Just coming up with lots of ideas for a novel isn’t the same as writing a novel. Imagine if one could get patents on the ideas for a novel; it would turn the field of literature into gridlock. On the other hand, we treat writing software differently even though it’s really the same thing.”

listening to an actor talk about politics.

Reagan. Sonny Bono. Schwarzenegger. Eastwood. Yes, it can be very painful.

This is a very limited view of the patent system and a misstatement of it at that. Under that view, patents do not discourage trade secrecy, they provide a superior alternative in many instances, without which the only options would be unprotected disclosure or trade secrecy. Given only those two options, trade secrecy would frequently be chosen, to the detriment of society. The point is not to discourage trade secrecy as such but rather to provide another option that makes more sense in many cases (but by no means all, e.g. the Coca-Cola formula).

But there are much more nuanced ways to understand the value of the patent system (prospect theory, commercialization theory, etc).

engineers can’t read patents

If an engineer (i.e. a person having ordinary skill in the art) can’t read and understand a patent (i.e. derive an enabling disclosure from it), then it is invalid. Sounds like a self-correcting problem to me.

Problem here is that licensing is not frictionless and academics assume that it is.

I invite Mr. Stallman to begin his review of the literature with the term “transaction costs.”

So far I am terrifically unimpressed, as I usually am by Stallman’s attempts to wade into very deep areas in which he has no training and very little experience. He is a computer programmer who came up with a successful alternative software licensing scheme, and he is a moderately successful project manager. But listening to his opinions about patents, pharmaceutical research funding, and international trade agreements is like listening to an actor talk about politics.

Ans: The government has a lot of money, and it should be spending more than it is. Anyone who thinks that the government doesn’t have money is buying into a right wing distortion in the first place. Our government was doing a lot of things 10 or 20 years ago that it’s not doing today.